Federal Motion to Dismiss Denial Affirmed on Warrant

On April 16,2018, a United States Customs and Border Protection (“CBP”) Officer assigned to the K-9 unit at JFK International Airport in New York was conducting a routine sweep of incoming mail bags with his trained drug-sniffing dog.

The dog alerted the officer to a particular package from Germany.  The CBP opened it and discovered what appeared to him, based on his experience, to be “Ecstasy” pills.  The official chemical name for Ecstasy is 3, 4-Methylenedioxymethamphetamine, also known as “MDMA.”  It is listed on “Schedule 1” under the Controlled Substances Act at 21 C.F.R. § 1308.11(d)(11) and its possession and distribution are prohibited under the Controlled Substances Act.

The package had been sent from Germany via Deutsche Post, putatively from a law firm in Goch, and was addressed to “Tony Fin” at an address in Richmond, California.

The package had a tracking number to determine its status in the delivery process with Deutsche Post and then, within the United States, with the U.S. Postal Service.

The next day, a different CBP officer working at JFK inspected a second incoming parcel, which listed the same sender and addressee, and he also discovered Ecstasy pills.

Together, the two packages contained a total of approximately 2,971 Ecstasy pills.

After their seizures, a check revealed that Tony Saelee resided at the residence to which the two packages had been addressed.  Officers searching on social media located a Facebook page with a Tony Fin page, whose photo matched the photo of Tony Saelee on his DMV photo.

The agents replaced the seized pills with “sham blue pills made out of detergent material” and then resealed the packages and delivered them through normal USPS channels.

A controlled delivery took place with an undercover U.S. Postal Inspection Service driving a USPS mail truck to Saelee’s home, which was an apartment above a store.  The agent then delivered the packages to Saelee, asking him if he was Tony Fin.  Saelee said yes.  He also confirmed he was expecting the packages and he signed a standard USPS form to confirm he received them.

A few days before the controlled delivery, a CBP officer had prepared an affidavit in support of a search warrant for Saelee’s apartment, after exchanging drafts with the U.S. Attorney’s office.

After the delivery was complete, he sought a search warrant, which was granted.

However, he did so after agents arrested Saelee and secured the premises five minutes after having delivered the packages.  Saelee was read his Miranda rights and invoked his right to an attorney.  The agents then did a protective sweep of the apartment to make sure no one else was present and for officer safety.  Saelee then took out his cell phone and officers seized it.

Saelee was then arrested for drug trafficking offenses and moved to suppress almost all evidence seized against him, mainly arguing that there was an illegal entry into his apartment and because the search warrant was not approved until almost an hour after his arrest.  The district court judge denied the motion.  The case then went to trial and Saelee was convicted at trial.

Saelee then appealed the district court’s denial of the motion to suppress to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which affirmed the district court in U.S. v. Tony Saelee (filed Oct. 11, 2022) (2022 DJDAR 10589).

The Ninth Circuit explained that under the independent source doctrine, suppression is unwarranted, even where evidence was initially discovered during, or as a consequence of, an unlawful search, when the evidence is later obtained independently from activities untainted by the initial illegality.  The government must show, however, that no information gained from the Fourth Amendment violations affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.

Here, both the agents’ decision to seek the warrant and the magistrate’s decision to issue the warrant were unaffected by the alleged Fourth Amendment violations.  All the evidence obtained was independently rediscovered or reseized when the agents executed a search warrant that was both sought and issued independently of any violations, so there was no Fourth Amendment violation.

We do not like this “it was OK anyway” approach that ignores the obvious violations of the Fourth Amendment.  Such rationalizations erode the Fourth Amendment and perhaps encourage police officers to violate the law, knowing a judge will sanitize the search later using an explanation like in this case.

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